There is significant controversy in the international community over the legality of the U.S.'s CT campaign. Some of the issues of conten- tion might be able to be alleviated by further clarification of the U.S.'s legal position, though one military attorney noted the current con- text of a lack of consensus around even the basic framework of the law [48]:
...[The] overt disagreement on the answer to the legality question masks that the various participants in the discus- sion are utilizing wholesale different methodologies and talking past each other in the process. Some speak in terms of how the United Nations Charter governs the overarching question of legality; others claim that the Charter provides only some of the framework; and still others posit that the Charter does not meaningfully apply at all. This divergence leads to correspondingly varied answers as to what extent the law of armed conflict (LOAC) or human rights law applies to the use of force through the United States engag- ing targets in Pakistan. These answers range from the char- acterization of the conflict in Pakistan as a war and UAS [Unmanned Aerial System] strikes as “just the killing of the enemy, wherever and however found” to the same strike being labeled extrajudicial killings, targeted assassination, and outright murder.
A UN Special Rapporteur noted that the U.S. use of drone strikes out- side areas of active hostilities “gives rise to a number of issues on
which there is either no clear international consensus, or United States policy appears to challenge established norms” [39]. Even former CIA Director Hayden has reportedly said that “virtually nobody in the rest of the world agrees with United States targeting policy” [49]. Moreover the UN Special Rapporteur noted that inter- national consensus is lacking on a number of legal issues of impor- tance to drone strike operations, and urged the U.S. (and other Member States) to “further clarify its position” [39].
One of the primary issues is the ambiguity and subjectivity in the def- inition of an armed conflict. As mentioned above, some contend that a portion of the areas in which U.S. CT operations such as drone strikes take place should be considered below the “threshold” of armed conflict, and that IHRL targeting standards should be used. Another issue of controversy is the U.S.'s criteria to satisfy a target posing an imminent threat, which have been criticized for being overly broad. Indeed, a DOJ legal memo [50] argues that, due to the nature of terrorism, “delaying action against individuals continually planning to kill Americans until some theoretical end stage of the planning for a particular plot would create an unacceptably high risk that the action would fail and that American casualties would result.” It concludes that, “the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” [50]. While DOJ makes a crucial point, this usage is at odds with the definition of the word “imminent” and signals a departure from the historical criteria for a nation to act preemptively in self- defense only when the “necessity of that self-defense is instant, over- whelming, and leaving no choice of means, and no moment of delib- eration” [51]. (Incidentally, imminence is required for targeting under IHRL.)
As an aside, this example provides a caution for the policy options that entail releasing further information about the drone strike tar- geting processes and the targets themselves: while such releases may be intended to bolster U.S. legitimacy in the eyes of the public and the international community, they could backfire if U.S. practices are
These types of ambiguities and controversies seem to have resulted in confusion in the public over what legal framework the U.S. is using, although the government has specified its use of the armed conflict framework. The government's policy of having especially “high and rigorous standards” for targeting [32] beyond what is required in IHL may add to the confusion, for along with the government's emphasis on requiring an “imminent” threat, a typical expectation of no inno- cent casualties is also reminiscent of the targeting standards from IHRL, but is not a requirement of IHL. Also adding to the confusion is the growing conflation of concepts from IACs and NIACs (c.f. [52]) and conflation of the legal frameworks governing armed conflicts and terrorism [43].
Indeed, acting in a manner that is consistent with international law while combatting this new type of terrorist threat is not easy. As one report notes:
The rise of transnational non-state terrorist organizations confounds preexisting legal categories. In a conflict so spo- radic and protean, the process of determining where and when the law of armed conflict applies, who should be con- sidered a combatant and what count as “hostilities” is inevi- tably fraught with difficulty...The legal norms governing armed conflicts and the use of force look clear on paper, but the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice. Basic categories such as “battlefield,” “combatant” and “hos- tilities” no longer have clear or stable meaning. [53]
The way the U.S. is waging the present “transnational NIAC” has novel elements compared to how NIACs were fought in the past. His- tory has yet to show whether these novelties represent a paradigm shift and adaptation of international law or a deviation from the law. One example of the novel aspects of the current U.S. framework is the level of participation in hostilities such as drone strikes by nonmil- itary U.S. personnel such as OGA personnel and military contractors, as well as the reported military support to actions under the purview of OGAs (see, for example, [54]). This raises questions about whether the protections IHL affords to combatants (combatant priv- ilege and Prisoner of War (POW) status if captured) apply to these
individuals (see [55]), although at least in the case of drone strike operations, the questions may be primarily academic: many U.S. per- sonnel involved in drone strikes operate from within the U.S., and in any case al Qaeda has been known to have brutally killed U.S. and coalition forces in Afghanistan without regard for IHL. However, this suggests that the military preference for drone strike operations might be preferable to an absence of such a policy from the stand- point of international law, or the spirit thereof.
On a related note, questions have also been raised about whether mil- itary service members involved in covert actions under Title 50 would be entitled to the protections afforded by IHL to combatants [56]. Concerns along these lines would be best addressed by restrictions on DOD conducting covert actions—such as the military preference policy with the additional preference that actions be under Title 10— without stricter limitations on OGAs, if indeed the military carries out covert actions and there are reasons to think that current restrictions and processes are insufficient. (Appendix B notes that a preference for operating under Title 10 does not restrict the military from carry- ing out unacknowledged TMAs, so this option might not sufficiently address this issue.)
Exploring further the differences between DOD and OGAs that are relevant to IHL, it is the case that DOD is explicitly obligated to comply with IHL, and its tactics, techniques and procedures (TTPs) are in accordance with international law. On the other hand, it is unclear whether or to what extent OGAs are in practice bound by IHL and other international laws in their actions. (Note that this uncertainty is probably by design: some OGA tactics may be more effective if the limits of their actions are not known.) A further differ- ence between DOD and other government agencies is the relatively high level of transparency in DOD's chain of command. For these rea- sons, the military preference has the potential to provide more confi- dence in the legality of U.S. drone strike practices.
Another notable aspect of the current U.S. framework is the lack of limitation on the geographic scope of the U.S. campaign against al Qaeda, as reflected in the AUMF. Whether this is appropriate and legal is another point of contention in the international community
(see, for instance, [39]). What is not under debate is the reality that legitimate al Qaeda-related threats have operated in multiple areas around the globe. The U.S. government attempts to assuage interna- tional concerns by its policy to respect nations' sovereignty and act in a country against a threat only with that country's consent or if it is unable or unwilling to effectively act against the threat (see [32, 35]). Another issue is that three of the U.S.'s stated standards of target- ing—the standards for targeted individuals' membership in al Qaeda or an associated force, the individuals being an imminent threat to U.S. persons and a near certainty of no civilian casualties—appear to be at odds with the widely reported U.S. practice of “signature” drone strikes, in which unknown individuals are targeted based on their pat- terns of behavior. Indeed, this practice is highly controversial, both within and outside of the U.S. (see [29] and [57], also the minority views in [58]). Within combat zones, there is no requirement in IHL to know the identity of targeted individuals, so the concern lies in car- rying out signature strikes outside of areas of active hostilities, and is one of the controversial consequences of the geographic scope of the U.S. campaign and its classification as an armed conflict by the U.S.22 Some have called for an end to signature strikes (e.g., [59]). Short of that, releasing information on the general parameters for these strikes—either by releasing more details about the targeting process or cases of targeted individuals—together with the legal rationale for these strikes could assuage some of this controversy, although if unconvincing, then such releases would just confirm concerns about signature strikes.
One final issue, noted by a UN Special Rapporteur, is that in an armed conflict, “in any case in which civilians have been, or appear to have been, killed, the State responsible is under an obligation to con- duct a prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation” [39]. This level of transpar- ency to the public (and accountability, depending on DOD and OGA internal practices for holding inquiries) is not present currently. Insti-
22. Signature strikes are a complex topic of much importance. However, an analysis of the practice—from a legal perspective or otherwise—is out- side the scope of this report.
tuting an Israeli-style court to review instances of civilian deaths could provide a good mechanism for carrying out such investigations. These issues are revisited next, as one component of the larger concept of legitimacy.